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Filed 5/29/96




No. 95-7066
(D.C. No. CR-94-46)
(E.D. Oklahoma)

Before ANDERSON, BARRETT and LOGAN, Circuit Judges.

After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of this
appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The case is therefore ordered
submitted without oral argument.

This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. The court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.

Defendant Jimmy Calvin Caves appeals from the sentence imposed after he
pleaded guilty to one count of distribution of marijuana, in violation of 21 U.S.C.
§ 841(a)(1) and (b)(1)(D) and 18 U.S.C. § 2.1 Defendant was sentenced to one hundred
eight months imprisonment, and five years of supervised release. On appeal defendant
asserts that the district court’s drug quantity determination for the base offense level
calculation was clearly erroneous. United States v. Clark, 57 F.3d 973, 977 (10th Cir.
1995) (clearly erroneous standard applies to factual findings concerning the quantity of
drugs for sentencing purposes).
In assessing defendant’s overall offense conduct, the presentence report took into
account defendant’s related possession and distribution of methamphetamine. It stated
that he should be responsible for 627.7 grams of methamphetamine--which included 60.7
grams seized at his residence, one-half pound (approximately 227 grams) he was negotiating to sell to an undercover drug agent, and 340.2 grams as a conservative estimate of the
amount sold to a named confidential informant, Jan Cagle. Only the quantity sold to
Cagle is at issue in this appeal. Defendant objected to the drug quantity calculation,
specifically challenging the reliability of the information provided by Cagle. Although
defendant admitted at the change of plea hearing that he sold methamphetamine to Cagle
Defendant was indicted on five counts which included charges of participation in
a drug conspiracy, distribution of marijuana, possession with intent to distribute
methamphetamine, and illegal possession and use of firearms. The government agreed
that after defendant’s sentencing, it would dismiss all charges except the count for
distribution of marijuana.


on several occasions, he was not asked at that time, and did not specify, the quantity
involved. The district court conducted an evidentiary hearing to resolve this factual
At the hearing DEA Agent Robert Shannon testified that Cagle contacted law
enforcement officers because she wanted to gain a reduction in sentence for her incarcerated husband in exchange for assisting in an investigation; she told Shannon she had
purchased two to six ounces of methamphetamine from defendant on approximately six
different occasions. Shannon acknowledged that he knew Cagle had several previous
arrests for drug trafficking and he believed she had one prior conviction for fraud, but he
considered her information reliable because she had provided other accurate information
about defendant and codefendant Lloyd Caves and their possession and distribution of
methamphetamine. In accepting the presentence report’s calculation, the court found that
“there is sufficient evidence in the record of this hearing with emphasis on [defendant’s]
testimony from the change of plea hearing to preponderate a finding that the information
furnished authorities by the cooperating informant [Cagle] had a sufficient reliability to
support [] its probable accuracy.” III R. 28.
The government has the burden of proving the quantity of drugs for sentencing
purposes by a preponderance of the evidence. Clark, 57 F.3d at 977. Hearsay evidence is
permitted, but information the district court uses to establish the drug quantities involved


in relevant conduct must have “sufficient indicia of reliability.” United States v. Richards, 27 F.3d 465, 468 (10th Cir. 1994); see also USSG § 6A1.3(a), p.s.
Defendant asserts that because the government did not provide any corroboration
of Cagle’s out-of-court statement concerning the quantity of methamphetamine defendant
sold to her, the record does not support the district court’s findings on drug quantity.
Defendant relies principally upon United States v. Fennell, 65 F.3d 812 (10th Cir. 1995),
and United States v. Ortiz, 993 F.2d 204 (10th Cir. 1993).
In Fennell we rejected the district court’s use for a sentencing enhancement of an
unsworn, unobserved statement by a witness as to whether defendant had fired a gun at
her. We determined that the witness’ statement lacked sufficient indicia of reliability.
We noted that the officer who took her statement on the telephone and testified about it
“could not form any opinion as to her veracity,” id. at 813, and further that the record
undermined “confidence in the [witness’] hearsay statements.” Id. In Fennell, we
emphasized that the unsworn out-of-court statements were “made by an unobserved
witness.” Id. By contrast, in the instant case Agent Shannon observed Cagle making the
statement, and the record contains no contradictory evidence.
Ortiz is also distinguishable from the instant case. There the district court denied
the defendant’s motion to identify the confidential informant; thus the defendant could
not call the informant to attack the government’s presentation of evidence. See id. at 20607; cf. USSG § 6A1.3 comment. (“[o]ut-of-court declarations by an unidentified infor4

mant may be considered ‘where there is good cause for the nondisclosure of his identity
and there is sufficient corroboration by other means.’”) (quoting United States v. Fatico,
579 F.2d 707, 713 (2d Cir. 1978), cert. denied, 444 U.S. 1073 (1980)). Further, in Ortiz
the defendant admitted only to distributing marijuana to “friends.” By contrast, in the
instant case defendant admitted at his plea hearing that he had made several methamphetamine distributions to Cagle.
As we stated in United States v. Ballard, 16 F.3d 1110, 1115 n.5 (10th Cir.), cert.
denied, 114 S. Ct. 2762 (1994), “the commentary upon which Ortiz relies refers to out-ofcourt statements by unidentified informants. . . . The Guidelines allow the court to
consider any information ‘so long as it has “sufficient indicia of reliability to support its
probable accuracy.”’” (emphasis added) (citations omitted). We believe that the statements of Cagle--recounted by Agent Shannon and supported to some extent by defendant’s own admission--had sufficient indicia of reliability that the district court could base
its drug quantity determination on that evidence.
Entered for the Court
James K. Logan
Circuit Judge